The Commission has published legal advice (PDF) received from senior independent counsel Jason Coppel QC.
The advice supports our view that the Government’s plan in the EU (Withdrawal) Bill to exclude the EU Charter of Fundamental Rights does not live up to its promise that Brexit should not lead to a reduction in rights.
There are six main concerns which arise from the loss of the Charter:
1. Less power to protect rights
The Charter provides more powerful mechanisms for protecting rights than are available elsewhere in UK law. For example, the case of Benkharbouche shows how, without the Charter, the Claimants would have been left without an effective remedy for their claims of discrimination at work.
2. Less flexibility to create new rights and reflect change
The Charter is a ‘living instrument’, meaning that it is not static and the rights it provides must reflect social change and be interpreted in the light of present day conditions. Because of this, the Charter has created valuable new rights and extended existing rights, such as the ‘right to be forgotten’.
3. A lower level of protection for fundamental rights
The Charter makes sure that EU law upholds basic rights and can also be used to strike down any EU law that undermines these rights. Many EU laws will be transferred to UK law and become ‘retained legislation’. After Brexit we will lose our protection around retained EU law, resulting in a lower level of protection for human rights.
4. Creating gaps in basic human rights
Losing the Charter would create significant gaps in substantive rights, because it includes rights that do not have direct equivalents in other UK human rights law. For example, it includes a free-standing right to non-discrimination, protection of a child’s best interests and the right to human dignity.
5. Losing the Charter principles
The Government’s proposals mean losing the Charter principles, which can be used to interpret rights and other laws. For example, the case upholding restrictions on tobacco labelling relied on the Charter principle of a ‘high level of human health protection’.
6. Legal uncertainty and confusion
By scrapping the Charter, the Government will create unnecessary legal uncertainty and confusion. The Government’s ‘right by right analysis’ (PDF) seeks to identify alternative sources of Charter rights which are scattered throughout domestic law, case law and international law. This is a recipe for costly and time-consuming litigation as the courts seek to establish how far the rights in the Charter continue to apply after Brexit.
All of these problems can be solved by keeping the Charter protections in UK law.
A group of more than 20 organisations and human rights legal experts, including the Equality and Human Rights Commission, signed an open letter on the importance of the Charter of Fundamental Rights ahead of the EU (Withdrawal) Bill returning to Parliament on 16 January 2018. The letter was published in the Observer.
The Commission has also published its briefing for MPs (PDF) in preparation for the Report Stage debate on the EU (Withdrawal) Bill. The briefing covers the Commission’s key priorities to protect equality and human rights as we prepare to leave the European Union.
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Last updated: 18 Jan 2018